증권범죄의 결과적 의미에 관한 형법이론적 고찰

Abstract

In securities unfair trading crimes, unjust enrichment that offenders have obtained are used as a basis to calculate their fines and considered for additional punishment in their prison sentences. Unjust enrichment has a decisive influence on the level of criminal punishment. As unjust enrichment becomes an element of crime in unfair transactions, securities unfair trading crimes have the nature of a result crime by requesting the outcomes of realizing unjust enrichment for their elements along with the crime act itself. Since result crimes need a causation between acts and outcomes, unlike formal crimes, the Supreme Court takes the position in which the amount of unjust enrichment should be in the scope of being recognized in its causal relation with unfair trading according to the principle of criminal liability, a broad principle in criminal law. The principle of criminal liability, a basic principle of criminal law, however, takes into consideration the degree and type of illegality based on the content of the offender's illegal act, which suggests that the restriction of unjust enrichment as an outcome of a violating act in securities unfair trading crimes based on the principle of criminal liability for evaluation of the illegal act does not agree with the basic principle of criminal law in some aspects. In addition, criminal law protects an individual's realization of rights only when social or national legal interest mediates it indirectly, which raises a problem that if the main protected legal interest of the Capital Market Act, which regulates securities unfair trading crimes, as social legal interest cannot be specified as individual human legal interest, the subjects cannot be protected by criminal law. Thus, this study set out to examine the meanings of unjust enrichment as an outcome of securities unfair trading crimes in criminal law, trying to answer this question based on criminal law theories. The study also aimed to investigate the protected legal interest of securities unfair trading crimes from the perspective of criminal law theories and review whether the elements of evaluation of actions for criminal activities could be considered in their connections to the concept of unjust enrichment as an outcome of securities unfair trading crimes. Offenders of criminal law cannot be put to criminal punishment without the prerequisite of their illegal acts. The consequent elements oriented toward their implementation are inherent in some parts in the content of evaluation of actions for criminal activities. Considering that connections with the violating act itself must be taken into account in legal phrases in order to put the offender to criminal punishment based on unjust enrichment as an outcome of securities unfair trading crimes, it is apparent that the elements of evaluation of actions for criminal activities are inherent in the concept of unjust enrichment as an outcome of securities unfair trading crimes, which makes securities unfair trading crimes illegal in criminal law.